Ballard et al v. Union Carbide Company et al
Filing
296
MEMORANDUM OPINION AND ORDER granting the plaintiffs' 238 MOTION to file the proposed third amended class action complaint; deeming the previously-filed 83 MOTION to Dismiss, the defendants' response to the third amended pleading such that no further briefing on that motion is required; denying the 289 MOTION to Strike, with the exception that the plaintiffs are directed to pay over to the defendants the attorney fees and costs reasonably and necessarily attributabl e to the defendants' taking the additional discovery necessitated by the plaintiffs' failure to include the now-expanded scope of the issues in the original reports of the three challenged experts; denying without prejudice the plaintif fs' 286 MOTION for deferral in view of the schedule modification directed and set forth more fully herein; denying without prejudice the defendants' 228 MOTION to Exclude the opinions of the plaintiffs' expert wit nesses Dr. Dahlgren, Mr. Haunschild, Mr. Horsak, and Mr. Cheremisinoff, to the defendants' filing of their reformulated Daubert motion as earlier noted herein; modifying the schedule as follows: Plaintiffs produce all discoverable informatio n in the files of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak relating to their affidavits and any subsequently filed supplemental reports authored by them by 01/04/2013; plaintiffs serve their amended expert reports to formalize and elaborate u pon the opinions expressed in the affidavits of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak by 01/11/2013; defendants' re-depose plaintiff experts as necessary by 01/18/2013; defendants' serve their amended responsive expert disclosures by 01/22/2013; plaintiffs re-depose defendant experts as necessary by 01/24/2013; response on class certification motion due by 02/08/2013; plaintiffs' Daubert motion and defendants' reformulated Daubert motion due by 02/08/2013; reply on class certification motion due by 02/25/2013; responses on Daubert motions due by 02/25/2013; replies on Daubert motions due by 03/08/2013; class certification hearing on 04/10/2013 at 10:00 a.m. Terminating the plaintiffs' 186 EXPEDITED M OTION for an order modifying the court's 10/5/2012 181 order as it applies to Steven Cole; the motion was addressed in an order entered 10/26/2012. The Clerk is directed to amend the style as reflected in the caption. Signed by Judge John T. Copenhaver, Jr. on 12/27/2012. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES COLEMAN and LARRY KIMBRO and
CARL MOTEN and ADELLE NEWBELL and
PHILLIP SCHULTE and NAOMI TACKETT and
DAVID TAMPLIN and CAROLYN TURNER and
PATRICIA WARD and TERRY WHITE and
BRIAN and CYNTHIA WRIGHT, husband and wife,
all of whom are residents
of the State of West Virginia,
Plaintiffs,
v.
Civil Action No. 2:11-0366
UNION CARBIDE CORPORATION, a Delaware
corporation, having its principal place
of business in the State of West Virginia and
THE DOW CHEMICAL COMPANY, a Delaware
corporation, with its principal place of
business in Michigan, and EMC ALLOY, L.P.
f/k/a ELKEM METALS COMPANY -- ALLOY, L.P., a
Norwegian corporation, having its principal
offices in the State of Pennsylvania, and
GLOBE SPECIALTY METALS, INC., a Delaware
corporation, having its principal place
of business in the State of New York, and
GLOBE METALLURGICAL, INC., a Delaware corporation,
having its principal place of business in
the State of Ohio, and WEST VIRGINIA ALLOYS, INC.,
a Delaware corporation, having its principal
place of business in the State of West Virginia, and
WVA MANUFACTURING LLC, a Delaware corporation,
having its principal place of business in the
State of West Virginia,
Defendants.1
1
The Clerk is directed to amend the style as reflected in the caption.
MEMORANDUM OPINION AND ORDER
Pending are the plaintiffs' motions (1) to file a third
amended class action complaint, filed December 10, 2012, and (2) for
an order deferring further briefing and any hearing on defendants'
Daubert motion pending a ruling by the Supreme Court in Comcast
Corporation v. Behrend ("deferral motion"), filed December 14, 2012,
and the defendants' motions (1) to exclude the opinions of the
plaintiffs' expert witnesses Dr. James Dahlgren, Greg Haunschild,
Randy Horsak, and Nicholas Cheremisinoff, and (2) to strike the
untimely affidavits of the plaintiff's expert witnesses, namely, Mr.
Haunschild, Dr.
Dahlgren, and Randy Horsak, filed December 18,
2012.2
Inasmuch as it is unopposed, it is ORDERED that the motion
to file the proposed third amended class action complaint be, and
it hereby is, granted.
The previously-filed motion to dismiss is
deemed the defendants’ response to the third amended pleading such
that no further briefing on that motion is required.
On December 26, 2012, the court conducted a telephonic
status conference with counsel.
As more fully reflected on the
2
Also listed as pending on the docket is the plaintiffs' expedited
motion for an order modifying the court's October 5, 2012, order as
it applies to Steven Cole, filed October 19, 2012. Inasmuch as the
motion was addressed in an order entered October 26, 2012, the Clerk
is directed to terminate the motion.
2
record of the proceeding, the court found that the subject affidavits
expand considerably the scope of the issues presented on class
certification without a concomitant showing of good cause or other
substantial justification.
As further more fully reflected on the
record, and with the parties' agreement to the extent set forth on
the record, it is ORDERED that the motion to strike be, and it hereby
is, denied, with the exception that the plaintiffs be, and they hereby
are, ORDERED to pay over to the defendants the attorney fees and costs
reasonably and necessarily attributable to the defendants' taking
the additional discovery necessitated by the plaintiffs' failure to
include the now-expanded scope of the issues in the original reports
of the three challenged experts.
Inasmuch as the plaintiffs' actions have necessitated a
substantial modification of time frame in this action, it is further
ORDERED that the schedule be, and it hereby is, modified as follows:
Plaintiffs produce all discoverable information in the
files of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak
01/04/2013
relating to their affidavits and any subsequently filed
supplemental reports authored by them.
Plaintiffs serve their amended expert reports to
formalize and elaborate upon the opinions expressed in
01/11/2013
the affidavits of Mr. Haunschild, Dr. Dahlgren, and Mr.
Horsak
Defendants' re-depose plaintiff experts as necessary.
01/18/2013
Defendants' serve their amended responsive expert
disclosures.
01/22/2013
Plaintiffs re-depose defendant experts as necessary.
01/24/2013
3
Response on class certification motion.
02/08/2013
Plaintiffs' Daubert motion and defendants' reformulated
02/08/2013
Daubert motion.
Reply on class certification motion.
02/25/2013
Responses on Daubert motions.
02/25/2013
Replies on Daubert motions.
03/08/2013
Class certification hearing.
04/10/2013
10:00 am
It is further ORDERED that the plaintiffs' deferral motion
be, and it hereby is, denied without prejudice in view of the schedule
modification ordered above.
It is additionally ORDERED that the
motion to exclude the opinions of the plaintiffs' expert witnesses
Dr. Dahlgren, Mr. Haunschild, Mr. Horsak, and Mr. Cheremisinoff be,
and it hereby is, denied without prejudice to the defendants' filing
of their reformulated Daubert motion as earlier noted.
The Clerk is directed to forward copies of this order to
all counsel of record and any unrepresented parties.
DATED: December 27, 2012
John T. Copenhaver, Jr.
United States District Judge
4
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